Thomas Fairclough: Article 50 and the Royal Prerogative

Introduction

This piece seeks to address only one question: does Parliament or the Government have the power to decide to withdraw from the European Union in accordance with Article 50 TEU and through the notifying of the European Council of such a decision trigger the two year time limited formal withdrawal negotiations? Nick Barber, Tom Hickman, and Jeff King have argued valiantly that it will be Parliament who has to “pull the Article 50 trigger”. This piece will analyse their arguments and suggest that, contrary to their conclusions, it is the Government, under the Royal Prerogative, that has legal authority to start the Article 50 process.

The Article 50 Process

This piece assumes that it will be Article 50 that is used to begin the exiting process (as argued for here). It will also assume that the exiting process will begin; whilst there have been some suggestions that the United Kingdom will not try to exit the European Union I argue that this is unlikely as a matter of political fact (whilst legally, of course, the Government and Parliament could just ignore the referendum and carry on as normal).

Article 50 reads as follows:

Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

A Member State which decides to withdraw shall notify the European Council of its intention….

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

There are three things to note here: first, Article 50 is a one-way street, once it is invoked there is no procedural route for going back and, if an agreement is not reached and an extension of time not given, then the United Kingdom will exit the European Union two years from the date of notification of intention to exit. Second, there is no real process prescribed for the decision making process on behalf of the Member State; Article 50 simply states that such a decision be made by the Member State “…in accordance with its own constitutional requirements”. As such, the nature of this decision making process is purely a matter of domestic law. Third, Article 50 requires two things to start the leaving process: (i) a Member State has to decide to withdraw from the Union in accordance with its own constitutional requirements; and (ii) a Member State that so decides has to notify the European Council of such an intention.

It is trite to say that the referendum held on the 23rd of June 2016 was not a “decision” by the Member State; it was merely an opinion gathering exercise by Parliament. However, politically, it is hard to ignore. The question then is who gets to decide we are withdrawing from the Union and who then notifies the European Council?

Parliament or Government?

The Prerogative Power

It is for the United Kingdom to decide to withdraw from the European Union according to its own “constitutional requirements”. So what are the constitutional imperatives involved in treaty withdrawal? The United Kingdom has no codified constitution and so it is hard to know from first glance who or what gets to decide. Certainly the Government are of the opinion that it is for them to decide that the United Kingdom wishes to exit the European Union. Of course, the Government have not stated on what basis they have the authority to initiate the Article 50 process. However, it seems that they would presumably be utilising their power under the Royal Prerogative, which has always contained powers relating to foreign affairs. This has historically involved the making of treaties at international level. While the Ponsonby Convention (now on a statutory footing in Part 2 of the Constitutional Reform and Governance Act 2010) does require that treaties be laid before the Houses of Parliament for a period of 21 days before they are ratified, the ability of the Government ratify treaties remains a prerogative power, as does the power to amend or withdraw from treaties. Crucially, however, any obligations arising from international law treaties do not take effect at domestic level until Parliament chooses to incorporate all or part of the international law into the domestic sphere. To be clear, there is a formal separation between the international and national spheres; the Royal Prerogative allows the Government, on the Sovereign’s behalf, to conduct foreign affairs and enter into international treaties but these treaties only have any direct domestic application because Parliament (through an Act) intends it to be so.

On a simplistic analysis it would seem, then, that the Government (specifically, presumably, the Prime Minister) can, at the international level, use the Royal Prerogative power of foreign affairs to trigger the Article 50 process. This is because our constitutional arrangements leave it to the Government to conduct foreign affairs. In isolation, the exiting process would be a paradigm case of conducting international affairs through the prerogative power. In this way, the Government can activate Article 50 today, tomorrow, or in ten years.

Inter-play between Statute and Prerogative

Nonetheless, as Barber, Hickman, and King rightly point out the relationship between statute and the Royal Prerogative has long been contentious. As Lord Parmoor said in Attorney General v De Keyser’s Royal Hotel Ltd. [1920] AC 508 (HL):

When the power of the Executive…has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament.

The precise scope of this principle is uncertain; some would say it is narrow, and if Parliament wishes to frustrate the Royal Prerogative it must speak clearly and not leave its intention to mere implication. On a wider view, as Barber, Hickman, and King argue, one could say that the “wider principle is that it is not open to Government to turn a statute into what is in substance a dead letter by exercise of the prerogative powers; and that it is not open to the Government to act in a way which cuts across the object and purpose of an existing statute”.

European Communities Act 1972and Royal Prerogative

As noted above, Article 50 is a one-way street that, at the eclipse of two years without a deal to the contrary, releases the United Kingdom of its Treaty obligations. If it is the Government who activate Article 50 then they would be utilising the Royal Prerogative to take the United Kingdom out of the European Union despite the fact that the European Communities Act 1972 (“ECA”) expresses Parliament’s wish for EU law to apply domestically (section 2 ECA). In other words, this Act functions as an incorporating statute, bringing the United Kingdom’s international obligations into the domestic sphere with domestic effect. Barber, Hickman, and King argue “the obvious intention of the Act is to provide for the UK’s membership of the EU and for the EU Treaties to have effect at domestic law. The purpose of triggering Article 50 would be cut across the Act and render it nugatory”.

The argument goes that because withdrawal would render the 1972 Act hollow it would cut across Parliament’s intention in enacting the ECA. Since Parliamentary intention trumps prerogative power, the Royal Prerogative cannot be used to initiate the withdrawal process. Instead, it must be Parliament that does so.

Whilst incredibly well argued, this is not an argument that I agree with. The ECA was undoubtedly enacted to give effect to the United Kingdom’s international obligations vis-á-vis the European Union at the domestic level. However, regardless of such an Act, as a matter of international law the United Kingdom would already be bound at the international level. The ECA merely transposes these international obligation into the United Kingdom’s law in accordance with the constitution’s dualist approach to the domestic effect of international law. The use of the Royal Prerogative in initiating Article 50 will not repeal or modify the ECA. That is undoubtedly for Parliament to do. All it would do is alter the Treaties at the international level to remove the United Kingdom from its international obligations. This is entirely consistent with the will of Parliament as expressed in the ECA, which is to automatically give effect to European Union law as it applies to the United Kingdom at the domestic level. However, the relevant Treaties of the European Union govern European Union law and these Treaties are enlarged or reduced in scope, from the United Kingdom’s perspective at least, by the Government’s representative(s) acting under the Royal Prerogative. Therefore, the Royal Prerogative can be used to activate the Article 50 procedure.

Barber, Hickman, and King suggest that because section 2 ECA “provides that all such rights, powers, liabilities, obligations and restrictions” coming from the Treaties are part of the domestic law Article 50 could not be activated by the Executive because that would cause a loss of rights provided by European Union law. The idea here is that because Parliament provided for rights to be incorporated domestically under the ECA the Executive cannot use the Royal Prerogative to frustrate that purpose by initiating the withdrawal process (and therefore take rights away from citizens). This normative argument is based on a fallacy; the ECA provides that rights “from time to time arising” under the Treaties to apply domestically. Those rights can increase in scope (as has been the general trajectory of the European Union project) but, likewise, they can be restricted. There could be a Treaty change, for example, that abolishes the European Parliament. This would, on a strict analysis, only require assent from the United Kingdom via the Royal Prerogative and not from Parliament, despite the loss of a democratic “right”.

The authors may argue that a lowering of rights is acceptable within the current framework because that works within the European Union, whereas Article 50 would result in a withdrawal, which “cuts across the whole object and purpose of the 1972 Act, which is to make the UK part of the EU”. However, this is misguided. The 1972 Act was not designed to make the UK party to the European Union; it was rather to incorporate our international commitments into the domestic sphere. One way to demonstrate this is to reverse engineer the argument; if the Royal Prerogative had not been used to join the European Union but Parliament had still passed the ECA, the United Kingdom would not joined the European Union. Barber, Hickman and King seem to revert to potential arguments along these lines and dismiss any such contention as “a very formalistic analysis”. With respect, I contend that what they consider formalism is in fact the recognition of the important distinction between international legal obligations and the domestic legislation that may give effect to such. We are party to the European Union because of the Royal Prerogative, and we will leave the European Union because of the Royal Prerogative.

Conclusion

I have argued that (regrettably, from my point of view) it will be the Government, using the Royal Prerogative, who will decide if/when to trigger the Article 50 mechanism and take the United Kingdom out of the European Union. The ECA did not change this, default, position. It did not provide for the United Kingdom to become a signatory to the European Union, it merely replicated our international obligations in the domestic sphere. We negotiated and joined the European Union through the Royal Prerogative, and we will negotiate and leave the European Union through the same. That is not to say that Parliament has no role; indeed, I hope that Parliament makes its feelings well known to whoever the Prime Minister is at the relevant time, both in relation to when to trigger Article 50 and the content of the negotiations that follow thereafter. Nothing in this piece is to detract from that; all it seeks to do is locate each branch of the state in its proper setting.

Thomas Fairclough, AHRC PhD Candidate at Gonville and Caius College, Cambridge and Teaching Fellow in Public Law and Jurisprudence at University College London. I would like to Darragh Coffey, Louise Hague, Hayley Hooper, Stuart Lakin, Ian McDonald, and Stephen Tierney for their comments on this piece. Any mistakes are my own.

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70 comments on “Thomas Fairclough: Article 50 and the Royal Prerogative”

CJ McKinney

July 8, 2016

On a minor point of information, where you say:

“the Government have not stated on what basis they have the authority to initiate the Article 50 process. However, it seems that they would presumably be utilising their power under the Royal Prerogative”

I do not agree with the international law argument set out here. On 28 October 1971 both Houses of Parliament passed a resolution agreeing in principle to the UK joining the EEC on the terms negotiated by the Government. The Accession Treaty was signed on 22 January 1972. That treaty could not have been signed absent the prior Parliamentary resolution. On 17 October 1972 the 1972 Act received the Royal Assent. On the next day the Accession Treaty was ratified. That ratification could not have occurred without the enactment of the 1972 Act the previous day. So Parliament was involved at all stages before anything happened on the international plane. The net result is that only Parliament can decide to withdraw from the EU since the prerogative cannot be used to trump the clearly expressed will of Parliament.

The wording of the referendum was discussed by Parliament and modified by agreement and therefore gave approval to the question ‘Stay in the EU or leave the EU’ as surely if there had been a Parliamentary vote in the House.
It is ‘inappropriate’ to claim that Parliament did not approve that the referendum should take place and accept any result arising. No motion was raised to challenge the enactment or consequences of a leave vote, or for that matter a remain vote. In short Parliament agreed that the question of EU membership should be delegated to the electorate on a simple yes or no basis.

I don’t agree cos parliament would have know the Referendum was non legally binding therefore they only agreed to an advisory referendum.

Michael Wilkinson

August 29, 2016

The only rights that can be taken away are those that Parliament agrees to. The Referendum only gave a right to a vote for ‘in or out of the EU’. So any argument that the Referendum removes ‘rights’ from the populous falls at the first fence.

The notion that Parliament only agreed to the Referendum being ‘advisory’ also falls at the first fence as Parliament was ‘silent’ on the issue. That is unless it is being argued that such a basic point of law does not apply to Parliament.

Eddie

September 8, 2016

Furthermore, Hammond, when proposing the Bill, stated:

“The debate in the run-up to the referendum will be hard fought on both sides of the argument. But whether we favour Britain being in or out, we surely should all be able to agree on the simple principle that the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber. The decision must be for the common sense of the British people. That is what we pledged, and that is what we have a mandate to deliver. For too long, the people of Britain have been denied their say. For too long, powers have been handed to Brussels over their heads. For too long, their voice on Europe has not been heard. This Bill puts that right. It delivers the simple in/out referendum that we promised, and I commend it to the House.”

Hansard 9 Jun 2015 : Column 1056

It is also clear, through case law as well as legislation drafting guidelines, that where a point is unclear (in this case whether the result should be binding or subject to further Parliamentary agreement) that Ministerial statements when proposing the bill can be relied upon by the courts.

Government proposer The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con) moved the Bill by clearly stating the “decision” was for the “British people” who would be given ” the final say”:

“The Bill will enable the Government to deliver our manifesto commitment to hold a referendum on the UK’s membership of the European Union before the end of 2017.

“That commitment was rooted in our desire to give the British people the final say on an issue that goes to the heart of the governance of this country—an issue on which we have not directly consulted the people for more than 40 years. Since 1975, the United Kingdom has held referendums on devolution, as well as on our voting system, and in the long years since that vote in 1975, the UK’s relationship with the European Union has changed beyond all recognition. Whether noble
Lords believe that this change has been for good or ill, or somewhere in between, it is right that the people now get to have their say.
Hansard House of Lords,13 Oct 2015 : Column 90
…
The Government have a clear mandate to hold a referendum on the United Kingdom’s relationship with the European Union. The EU referendum Bill will enable that to take place before the end of 2017. The Bill takes the best examples of good practice from previous referendums in the United Kingdom, and sets out rules on who can vote, and how they vote, which are reasonable and robust. It ensures a fair campaign so that the deck is not stacked in favour of one outcome or the other. This Bill sets the stage for one of the biggest decisions that the people of these islands have been asked to make in a generation. I beg to move that this Bill be read a second time.
13 Oct 2015 : Column 94

The terms of the Referendum are stated to be advisory. Parliament must vote to enable the government to legally trigger Article 50, particularly as the triggering of Article 50 of the Treaty of Lisbon would inevitably undermine the European Communities Act (ECA) of 1972 enacted by the UK Parliament. The ECA1972 (as with any act of Parliament) may only be repealed by a further repealing Act of the UK Parliament. Undermining the Supremacy of Parliament, directly or indirectly (or whether by a referendum and/orby use of the Royal Prerogative and/or as a result of the ferocious media campaigns of certain sections of the British media (e.g. the Sunday Express, Daily Mail/ the Sun)should not be taken lightly. Bloody civil wars have been fought in the UK to ensure the Supremacy of Parliament as the ultimate legislative making body in the UK. Moreover, as a political matter, the UK fought two bloody European wars, which became world wars to prevent Germany dominating Europe and now the brexiteers (formerly led by Nigel Farage ( married to a German wife…)wish to hand back such domination of Europe to Germany without even a vote of Parliament! Not to mention all the rights (e.g. visa less travel/residence/ regional/educational grants/ Euopean wide banking and financial services provisions which are worth billions of sterling to the City of London) British citizens risk loosing both in the UK and the rest of Europe and all without the UK Parliament voting thereon. If this were to happen without the approval of the UK Parliament it would be illegal under the laws of England & Wales, Northern Ireland and Scotland.

If that is true regarding the parliamentary resolutions in 1971 it is nice that the two houses did this, however, it was not constitutionally necessary as the Royal Prerogative powers of government were all that was legally needed. They have been used before 1971 and since without prior parliamentary resolution. It appears they are now being used once again. Perhaps this is all well and good since Parliament cannot be trusted not to overturn the decision of the British people to leave the EU – a decision granted them by Parliament.

With respect, you are conflating the executive acts of the Sovereign with the administrative acts of Parliament.

Gordon Brown signed the Lisbon Treaty (“the Treaty”) itself in 2007, and ratified it in 2008, under prerogative powers – without the prior or subsequent consent of Parliament.

The European Union (Amendment) Act 2008, enacted in June 2008, did not ratify the Treaty. It merely included the Treaty into UK law by adding it to the list of treaties annexed to the ECA – a purely administrative act. The Treaty was ratified in July 2008 – again under prerogative powers – when the British Government deposited the instruments of ratification in Rome.

Accordingly, the logical conclusion of your assertion would be that the Treaty itself is a nullity, which it plainly is not.

No Act of Parliament affecting the instant prerogative powers has been enacted, ie received Royal Assent.

I would therefore go further than Mr Fairclough and propose that:

1) Article 50 of the Treaty can ONLY be exercised by prerogative powers

2) Parliament has no power to exercise, limit, control or abolish prerogative powers in the absence of ROYAL ASSENT to an an Act of Parliament so enacting. In other words only the Sovereign can delegate or abolish his or her prerogative powers.

3) A fortiori, ONLY the Sovereign can perform the executive act of giving notice under Article 50 of the Treaty, and the ONLY role of Parliament in the Article 50 process is administrative, ie to repeal the ECA with effect from the UK’s withdrawal from the EU.

I am no lawyer .. however, was the fact that both houses of Parliament passed a resolution agreeing in principle to the UK joining the EEC on the terms negotiated by the Government, not a violation of the Magna Carta (1215), the Petition of Right (1628), the Bill of Rights (1689) and the Act of Settlement (1701) which all require Parliament to consult the electorate directly where constitutional change which would affect their political sovereignty is in prospect, of which there have been two precedences set – Parliament was dissolved in 1831/2 to obtain the electorate’s authority for the Reform Bill and again in 1910 following the Lord’s rejection of the Liberal Finance Bill. Basically prospective changes to the political sovereignty of the people can only be decided by the people .. not by parliament or even the Queen, as the Bill of Rights states “I do declare that no foreign prince, person, prelate, state or potentate hath or ought to have jurisdiction, power, superiority, pre-eminence or authority within this Realm.”. As far as I am aware none of the above have been repealed and are still British Law. The retrospective referendum conducted in 1975 was also illegal, as it asked whether we wanted to remain in the Common Market .. how could we be asked to remain in something we had not legally joined.

Could the Queen refuse to apply Royal Perogative? It strikes me that we are in extraordinary times, and maybe extraordinary measures are in order. Yes – as a result of that action, the UK constitution would probably be changed to prevent a monarch intervening in that way ever again. I just question what kind of country the Royal Family want to be (nominal) heads of state of..? A fascist oligarchy? A banana republic?

A more relevant argument would seem to be that the government, by taking steps that inevitably will lead to the UK leaving the EU, would in effect deprive British citizens of a number of legal rights that they now enjoy as EU citizens. And unless I misunderstand something, under the British constitution the government cannot remove or nullify legal rights of British citizens without parliamentary approval. ‘Royal Prerogative’ powers cannot be used to overturn statutory rights.

This is what the argument will be. The issue is that the rights aren’t given by Parliament directly; the ECA gives you rights as occur under the Treaties and the Treaties change due to Royal Prerogative. Different to if an Act directly said you have x,y, and z rights and they tried to use RP to nullify that.

If the British people are unhappy with their legal rights given to them, they will sack their government at the general election and elect a new one.If the EUSSR pass laws that change the legal rights of the British people, what chance do the British people have of getting rid of the unelected EUSSR dictators?

All EU laws are voted on by democratically elected MEPs – although I would guess that you have never taken the time to invest in that part of the democratic system have you? – and there is also a clearly defined mechanism for removing the Commission. No law has ever been passed that was not overseen and agreed to by a representative that you had the opportunity to elect. This is exactly the same as the UK’s ‘parliamentary democracy’ (note the very well chosen label) that Brexit supporters now want to override because it does not suit their needs

grahamwood32

November 22, 2016

“All EU laws are voted on by democratically elected MEPs –……. No law has ever been passed that was not overseen and agreed to by a representative that you had the opportunity to elect.”

Nonsense and on several grounds!

1. The main one being that under our Constitution it is illegal for any British government to transfer powers to a foreign law making body such as the EU “parliament”. It is simply stated in our existing Bill of Rights which remain unrepealed and current law. Similarly, the Coronation Oath Act.
A H of C Speaker declared that the B of R “will be required to be fully respected by all those appearing before our courts” (21st July 1993)

2. The pretended authority of the EU parliament directly conflicts with, and is in breach of British oaths of allegiance by ministers solely to the British Crown.

3, The Coronation Oath Act specifically binds the monarch to “govern according to the Statutes in Parliament agreed on” Again that Statute is in direct conflict with the pretended authority of the EU “parliament”

4. The EU and its “constitution” places the power of governance unlawfully to those who are unelected (EU Commission) irremovable, unaccountable, to the UK electorate. It is therefore treasonous and illegal to pretend otherwise.

5. Finally, the Treaty of Rome was entered into by a UK government through fraudulent action by the then PM, Edward Heath, and the British electorate deceived accordingly. This is all well documented, and Heath later admitted that he lied to the electorate. This being the case the T of R and subsequent treaties are all illegal under our Constitution and therefore substantial grounds exist to rescind all of these under the clear clauses of the Vienna Convention on Treaties to which the UK is signatory.

Nick is therefore correct and the EU “parliament” should be called out for what it is – namely a completely bogus concept with no mandate from the British people to represent them. It has no power at all to initiate policies and is merely a talking shop and mouthpiece for the unelected Commission.

Indeed we have, though it is not collected in one single document as we know, for our Constitution’s evolution spans a period of centuries. Thus the 1215 Magna Carta is a celebrated and esteemed document and just as much a part of our Constitution as the later Declaration and Bill of (1688/89). It pre-dates the establishment of parliament
Our political class often pay lip service to the existence of our Constitution but in practice often choose to ignore it – particularly as their political ideology of embracing the claimed authority of the EU is entirely incompatible with all and ev ery part of our Constitution. This has been the case for the past 43 years, but how thankful we should be that the British people have now rejected this dangerous and subversive nonsense!
The Act of Settlement, Coronation Oath Act, and Bill of Rights and the Treaty of Union are pre-eminently all part of extant Constitutional law, and unless parliament by express will and intention repeals these, then they will remain so as expressing fundamental principles undedrgirding the governance of our country.
These are in effect the real and genuine “rule of law” (as opposed to the fanciful and undefined term which politicians bandy about by which they often mean “EU law”)
Actually the birth-right of Englishmen depends upon the supremacy of the rule of law, its observance, and their right to control their laws, their content and making – (as opposed to any supra national law making body such as the EU Commission)
Their right to self-determination under the rule of our OWN law is the very fabric of our liberties.
Our liberty should be protected in the particulars of our constitutional law and Parliament’s overriding duty is to maintain and preserve their freedoms.
Parliament’s power is not arbitrary or absolute.
When it is said that ‘Parliament is sovereign’ it confirms the supremacy of the law and the supremacy of our Constitution and Parliament’s duty and responsibility to uphold and maintain both.
In the final analysis as has just been demonstrated in the EU Referendum, it is of course the people who are sovereign, and it is to their credit that our parliament recognised this in voting overwhelmingly for the 2015 Referendum Act, so mandating the people to make the final decision whether to remain or leave the EU.

Kim Amey

October 9, 2016

What do you mean by unelected EUSSR dictators?
It doesn’t sound like the EU.

Mike Fearon

July 8, 2016

In my view (for what it may be worth) this is a better argument than that put forward by Barber Hickman and King, well presented though that was. It is possible to go further, and to argue that the UK Parliament could decide to leave the 1972 Act in place, and voluntarily decide to give effect to existing treaties and EU laws and Direcitives, whether or not The UK remains a member of the EU. This would seem absurd, but that does not make it a constitutional or legal impossibility.

The wording of the referendum was discussed by Parliament and modified by agreement and therefore gave approval to the question ‘Stay in the EU or leave the EU’ as surely if there had been a Parliamentary vote in the House.
It is ridiculous to claim that Parliament did not approve that the referendum should take place and accept any result arising. No motion was raised to challenge the enactment or consequences of a leave vote, or for that matter a remain vote. In short Parliament agreed that the question of EU membership was delegated to the electorate on a simple yes or no basis. It is now up to parliament to agree exit terms etc. having as I have said, agreed to the referendum and its outcome.

How many grey area’s are there in a black and white Question? That’s how the black crows make their living, there was no ambiguity on the correspondence I received from the government or participating groups. It was straightforward and clear that the government would enact the result. As a normal member of this country I expected the result to be carried out regardless. Seems I was naive and wrong.

If the argument presented here is correct then it renders null the point made by Brexiteers that our parliamentary sovereignty was at risk if we remained in the EU.
If the executive has the power to exercise the Royal Prerogative at will to trigger Art 50 then our executive was never ‘not in total control’.

It is it seems RP that is more a threat to Parliamentary Sovereignty. Using RP to trigger Art 50 thus bypassing Parliament is to exclude democratically elected representatives from their proper representation of their constituencies. A more democratically honest way of obtaining political and moral authority for such an act as triggering Art 50 would be to include such intent in a manifesto presented to the nation prior to a general election.

Thomas makes the point;

“It is trite to say that the referendum held on the 23rd of June 2016 was not a “decision” by the Member State; it was merely an opinion gathering exercise by Parliament.”

As such then it represents nothing more than the view of the mob to put it bluntly. And the result represents the view of just over one half of the mob at that. For the executive to claim it is morally, politically and legally bound by the view of the mob is for the executive to abdicate it’s responsibility to rule in accordance with the rule of law and parliamentary democracy. The executive in exercising the Royal Prerogative thus, is thus subjecting the governance of the nation to mob rule. Not the first empire to end it’s days thus.

The key is that the people were given responsibility by Parliament to make the decision, thus RP should apply.
Your argument only holds water if the people were not given the responsibility by Parliament.
They were in the 2015 EU ReferendumAct.

1The referendum

(1)A referendum is to be held on whether the United Kingdom should remain a member of the European Union.

(2)The Secretary of State must, by regulations, appoint the day on which the referendum is to be held.

(3)The day appointed under subsection (2)—

(a)must be no later than 31 December 2017,

(b)must not be 5 May 2016, and

(c)must not be 4 May 2017.

(4)The question that is to appear on the ballot papers is—

“Should the United Kingdom remain a member of the European Union or leave the European Union?”

The point is that the legislation did not devolve the powers of parliament to “the people”. There was nothing stated that made this referendum anything more than advisory – like any other referendum. Clearly, parliement would have a big political problem if it chose to reject that advice out of hand. But also parliement (and not a few people in the cabinet or in a committee) has the responsibility to serve its legal obigations. And the senior ministers also have an obligation to ensure that parliament is acting legally. Their immediate application for appeal of the recent judgement – without even bothering to spend time reading the judgement in detail – is an indication that government ministers are perfectly happy to ignore the law if it does not suit them.

Just consider for a moment what this means. Regardless of whether you are pro or anti Brexit, the situation is that we have a government who are happy to ignore constitutional law, and most of the popular media are now baying for the Judge’s blood. Does this make you confident in the continuation of the UK as a democratic state?

grahamwood32

November 8, 2016

In reply to Anthony Carter’s point:

“It is it seems RP that is more a threat to Parliamentary Sovereignty. Using RP to trigger Art 50 thus bypassing Parliament is to exclude democratically elected representatives from their proper representation of their constituencies”.

I would refer you to the answer so ably and simply presented by John Redwood today on his blog today, re the RP, namely:

“The other main argument the judges used was the bizarre idea that prerogative
powers of Ministers can never be used to change UK law. What do they think has been happening for the 44 years of our membership of the EU? Time after time Ministers have consented to an EU law under prerogative powers which directly changes UK law. Why did they approve and encourage this process, and then turn round when we wish to use the same method to restore UK Parliamentary control and say it cannot be done?”

It seems that Parliament set about to reverse over 40 years of the subjugation of itself to EU law making powers through the terms of the 2015 Referendum Act which mandated the electorate to make the crucial decision whether to remain or leave the EU. It left the decision entirely to the electorate. Thus the sovereignty of parliament can now be fully restored.

There is another point which afaik has not been raised in the above excellent article
or elsewhere in relation to the use of the RP. In 2004 the H of C Administrative Select Committee undertook a thorough and wide ranging evaluation of prerogative powers of the Crown, including that of treaty making/breaking.
Its conclusion, wholly relevant to the current debate was:

“The Crown is not bound by Statute save by express words or necessary implication”.

It seems to me that this conclusion fully warrants the use of the RP to repeal Article 50 of the Lisbon Treaty as the referendum result mandated them so to do in specific and unambiguous terms by the electorate.

Do I take it from Mr Redwood’s comments that Parliamentary democracy is a sham, and, in effect, any decision can be enacted by executive use of the Royal Perogative and furthermore, if this is the case Parliamentary representation is merely advisory? It seems to me this is baking one’s cake and trying to eat it at the same time.

I don’t agree with this argument it would set a dangerous precedent that any Gov of the day could set about holding a referendum and with the slimmest of majorities change the entire constitution of the Country. art 50 quite clearly states in accordance with its own “constitutional requirements” which will clearly involve parliament and not just Gov executive powers. Common sense should prevail no matter how well legally argued. Of course it would have been a different matter if the Referendum had been immediately Legally Binding but it wasn’t.

In 2011 the British Government introduced “the European union act 2011”. As I understand it, it states that powers cannot be transferred between the UK and European Union without A) at least parliament agreeing and B) If the powers effect sovereignty, a referendum must be held.

While intended to stop powers going to the EU from the UK, the act does not specify in which direction the power transfer occurs. Could this act be used to stop the PM triggering article 50 without going to parliament and referendum?

But where does the notion of an advisory referendum originate? Not aware of any referendum that was intended to be merely an opinion poll or to help give guidance to Parliament. I suspect the concept itself dubious. Bizarre that this should be the default assumption. Referendums are so rare; they represent a failing of the normal Parliamentary system and should be assumed to make the decisions Parliament itself feels it does not have the authority to take itself.

We seem to be forgetting the role that voters play in the constitutional framework of the country. More specifically, the 23 June referendum directly relates to authority to trigger Article 50.

We have been through four months of campaigning and a relatively clear referendum result from the UK electorate on a clear question – do we Remain or Leave? This question could easily be interpreted as “Should the UK Government in the relatively near future trigger Article 50 to Leave the EU or Remain in the EU? The electorate having decided this issue, it is then for the Government to implement i.e. trigger Article 50.

It’s important to remember the various steps by which the electorate have provided a mandate to the government on triggering Article 50:
– the Conservative Party put in their 2015 general election manifesto that they wanted to renegotiate the terms of EU membership and have a subsequent Leave/Remain referendum;
– the Conservatives won the general election and therefore had a mandate from the electorate for this process;
– the Parliament elected in 2015 legislated this process and authorised the referendum;
– the electorate then voted on this issue providing the UK Government with a mandate to Leave the EU.

Parliament can of course legislate whatever it wants, but to frustrate the direct instruction of the electorate – the result of a referendum that this Parliament itself authorised – would indeed be dangerous for our democracy.

The importance of manifestos and mandates (i.e. consent) in constitutional change is all too often overlooked;

Michael Wilkinson: This is because parliament is sovereign and referendums are generally binding in the UK.

Could MPs block an EU exit?
Could the necessary legislation pass the Commons, given that a lot of MPs – all SNP and Lib Dems, nearly all Labour and many Conservatives – were in favour of staying? The referendum result is not legally binding – Parliament still has to pass the laws that will get Britain out of the 28 nation bloc, starting with the repeal of the 1972 European Communities Act.

Michael Wilkinson, the following is in the second paragraph of the bill, stating advice and consent of the house of commons is required.

Be it enacted by the Queen’s most Excellent Majesty, by and with the ADVICE and consent of the Lords Spiritual and Temporal, AND COMMONS, in this present
Parliament assembled, and by the authority of the same, as follows:— “

This is the standard preamble to Parliamentary acts – the Queen has taken the advice of Parliament and what follows is law. It does not relate to whether the EU Referendum was or was intended to be advisory in nature. The Act appears to be silent on whether it is advisory or binding.

Michael Wilkinson

September 15, 2016

The wording of the referendum was discussed by Parliament and modified by agreement and gave approval to the question ‘Stay in the EU or leave the EU’

It is ‘inappropriate’ to claim that Parliament did not approve that the referendum should take place and accept any result arising. No motion was raised to challenge the enactment or consequences of a leave vote, or for that matter a remain vote.

Parliament agreed that the question of EU membership should be delegated to the electorate on a simple yes or no basis without there being any mention that the referendum was to be only advisory.

The Act is silent on the question of whether the referendum was only to be advisory.
Surly that is an end to the matter because if a ‘contract’, in this case an Act of Parliament, is silent on the question of ‘advisory only’ it cannot be rely on in law.

Simon Joens

September 16, 2016

Unfortunately that’s not the case. The UK has a parliamentary democracy and all referendums are advisory only. This is why the Referendum for the Alternative vote system specifically had to have the words that this referendum would be “legally binding”. Without those words all referendums in the UK are advisory only.

It was stated as being advisory in the Commons Library Briefing papers to MPs prior to their voting on the Bill, which Briefing Paper was not overtly overturned by ey Government.
The Common Library serves as the source of the Court of Parliament’s internal, dare I say jurisprudence. Parliament is not an anarchy, as a Court producing laws it has its own rules for so doing.
That is why so why many MPs, or their assistants spend a lot of time in it searching the Library archives for precedent and convention.
It was expressed to be advisory in at least three separate documents, so may I suggest you do a little bit of digital legwork and find it, rather tan relying upon the other side of the argument to produce what is a publicly available document to which you could be quite correctly accused of turning a blind eye?

With reference to Robert Craig’s article posted on 8 July 2016 and specifically to the following extract:

“A fourth option

This note argues, by contrast, that the prerogative and s 2(2) ECA are not relevant to the exercise of the executive power to trigger exit from the EU. Nor is there any need for fresh legislation. This is because there is already legislation which has been passed by parliament which provides statutory authority for executive action in this area. It therefore suspends, or places into abeyance, any prerogative source of authority to act and instead this legislation, not the prerogative, forms the legal basis for the power of the Prime Minister to trigger exit from the EU.

The legislation is the European Union (Amendment) Act 2008 (‘the 2008 Act’) which incorporates the Lisbon Treaty into UK law and, incidentally, gives it overriding legislative force with respect to past and future ordinary legislation by inserting it, in terms, directly into s 1(2) of the ECA. Any action under Article 50, as one section within the Treaty incorporated into UK law by the 2008 Act and the ECA, therefore must be taken under the relevant statutory authorisation and operate within the four corners of the relevant legislation.

In addition, s 6 of the 2008 Act (later replaced by the European Union Act 2011) specifically lists actions under the Treaty which require further parliamentary approval before a Minister can undertake them. Article 50 is not among those actions listed in the 2008 or 2011 Acts.

Article 50 is therefore already incorporated in UK law by primary legislation. Executive discretion to use it has therefore already been authorised and approved by parliament.”

So far, I have seen no cogent refutation of his argument that triggering Article 50 by using crown powers does not require fresh legislation. Would you or any other constitutional lawyers like to comment on Robert Craig’s conclusion in the final paragraph cited above?

Responding to the release of the skeleton arguments, John Halford, a solicitor partner at Bindmans law firm, which represents the People’s Challenge, said: “The court’s order allows a floodlight to be shone on the government’s secret reasons for believing it alone can bring about Brexit without any meaningful parliamentary scrutiny.

“Those who were unsettled by the government’s insistence on its defence being kept secret will now be surprised by the contents, including submissions that Brexit has nothing constitutionally to do with the Scottish and Northern Ireland devolved governments, that parliament ‘clearly understood’ it was surrendering any role it might have in Brexit by passing the EU Referendum Act, that it has no control over making and withdrawal from treaties and that individuals can have fundamental rights conferred by acts of parliament stripped away if and when the executive withdraws from the treaties on which they are based.

“These arguments will be tested in court next month, but now they can be debated by the public too.”

The attorney general, Jeremy Wright QC will lead the government’s case in court on 13 October. He will appear alongside James Eadie QC and Jason Coppel QC.

Wright said: “The country voted to leave the European Union, in a referendum approved by act of parliament. There must be no attempts to remain inside the EU, no attempts to rejoin it through the back door and no second referendum. We do not believe this case has legal merit. The result of the referendum should be respected and the government intends to do just that.”

He will appear at the hearings in the high court on 13 and 17 October.

1) If a previous referendum on AVS needed to insert a clause in order to make it legally binding on the government, doesn’t the absence of such a thing in a subsequent referendum rather imply that it is not binding?

2) As a layperson with no legal background, can I ask what may be a naive question? When this issue is decided one way or the other in October, will be there any right of appeal to a higher court? I haven’t seen anything in any newspaper about this. Could this thing run and run? And could we have the (ironic) possibility that this could go to the ECHR, specifically on the idea that invoking Article 50 via RP removes the statutory rights of UK citizens without any discussion or vote by parliament?

By the very fact the the government is attempting to use royal prerogative to enact brexit proves the referendum is advisory only. If it were binding then we would already be out of the EU and article 50 would have been triggered.

Taken from the third report into the referendum on Scotland’s Independence
“The effect of a referendum

7. There was some confusion in the evidence we heard as to whether the result of a UK referendum was ‘advisory’ or ‘binding’. This distinction as explained by Professor Stephen Tierney, of the University of Edinburgh’s School of Law, was the difference between “a legal obligation to abide by the result and a political commitment.”

the moot point is whether the effect of the 2016 referendum is legally binding on the Government or if they are only bound by a political commitment. It may be posited that to ‘legally bind’ parliament by the outcome of a referendum is to fetter a future parliament. Which, within the UK constitution cannot be done without parliamentary sovereignty being undermined.

You cite no authority for your proposition that “It is trite to say that the referendum held on the 23rd of June 2016 was not a “decision” by the Member State; it was merely an opinion gathering exercise by Parliament.”

The 2015 Act is open to a Pepper v Hart reading that it provided for a statutory decison on the referendum question given the very clear statements of the Government proposer at second reading in the Commons on who was intended to tale the decison.

This may not now be an academic point as it has been raised in the skeleton argument to the People’s challenge interested party even though that is not the current defence being run,

Page 12 of Gov’t Response to HoL Select C’ttee on the Constitution 4th Report 2010/2011
HoL C’ttee Recommendation:” We recognise that because of the sovereignty of Parliament, referendums cannot be legally binding in the UK, and are therefore advisory. However, it would be difficult for Parliament to ignore a decisive expression of public opinion.”
Gov’t Response: “The Government agrees with this recommendation. Under the UK’s constitutional arrangements Parliament must be responsible for deciding whether or not to take action in response to a referendum result.”

may help clarify the status of referenda (if the others I posted on Sept 30th above didn’t) in our constitution, that absent express terms in the statute authorising they be held it is clear that they are not ‘legally binding’ on Parliament and all that has been accepted in the current referendum is a ‘political commitment’ to abide by and implement the outcome of the vote.

Not the same thing at all.

However I accept your point re Pepper v Hart reading in this matter but that is for their Lordships to determine at which point the law is found to be what it is. As it always is.

Lord Hunt of Wirral (Con) clearly understood the intended legislative purpose of Government proposer Baroness Anelay of St Johns was to remit the decision to the British people, and that sovereignty remains with “the people”:

“Over my lifetime, I have heard much talk of the sovereignty of Parliament, but sovereignty ultimately belongs not to Parliament, nor to parliamentarians, but to the people. When the union between England, Wales, Scotland and Northern Ireland, which I passionately support, is at stake, or when our role in the family of nations of Europe, as embodied by the European Union, which I also passionately support, is at stake, the fundamental question of sovereignty is also at stake. When sovereignty is pooled, shared or invested—whichever term of art we choose—then, sometimes, it is right to put the argument directly to the people; or, to put it another way, it would be wrong not to do so.

“We in this House—and even our colleagues in another place, who enjoy a democratic mandate that we do not—can and should claim no ownership over
the sovereignty of the people. It is entrusted and leased to us by them, but the freehold does and must always remain with them.”

My comment was for Thomas Fairclough, who I quoted, and as a general challenge to those asserting the proposition that the 2016 referendum, provided for by the 2015 Act, was “advisory” to either produce authority for this proposition or to acknowledge that this is not a settled question of law.

The link to the Hansard debate helpfully provided by Anthony Carter evidences, inter alia, the fact that there was debate in Parliament about the legal status of the 1975 referendum; it is not legal authority per se.

Whether the government’s purpose in 1975 was to provide for an advisory referendum, or a statutory decision, or for any other legislative purpose cannot determine the intended purpose of the legislation proposed by the Government in 2015.

My argument is that “the status of referenda … in our constitution”, is an irrelevant general concept and thus intellectually flawed. The relevant concept, I say, is statutory construction of a particular statute providing for a particular referendum, here the 2015 Act providing for the 2016 referendum.

The question of law, on this argument, is whether the 2015 Act provided for the United Kingdom’s statutory decision on the referendum question: “Should the United Kingdom remain a member of the European Union or leave the European Union?”

My argument is that the Government proposers of the Bill in both the Lords and the Commons stated the purpose of the Bill was to provide for a “decision” and that this should be ultimately determinative of all the claims.

I am currently unclear if the Courts have recieved any applications to admit evidence from the Hansard Proceedings. My view is that this is necessary to discharge the duty of candour that all parties, particularly public-authority defendants, owe to the Courts in judicial review.

1. Is the fact that the Government proposers of the European Union Referendum Bill stated the intended purpose of the legislation was to provide for a “decision” or “the final say” material to the Brexit litgation;? and
2. Are these facts diclosable under the duty of candour?

The argument advanced in response to the claim that the referendum was “advisory” is in some ways consistent with the Pepper v Hart defence I have advocated, but the skeleton does not appear to cite this authority.

See the citation of Hansard evidence in footnote 1 to paragraph 20 on page 7, for example.

Once the holding of a referendum has been agreed by Parliament the rules of the game change for Parliament. Unless provision is made in the Act authorising a referendum for it to be only advisory or a clause inserted stating that Parliament shall vote on what action should be taken after the outcome of the referendum, MPs and Lords cannot claim that it is Parliament’s role to vote on the outcome of the referendum . The holding of a referendum whose outcome is not just advisory trumps the authority of Parliament because if it did not the reason for the referendum would vanish.
There is also amply precedent for the use of the prerogative by UK governments in connection with treaties relating to what is now the EU. The UK’s admission to what was then the European Economic Community in 1973 was done without a referendum through the use of the prerogative by Edward Heath and every treaty emanating from what is now the European Union has also not been presented to Parliament for their approval but given legal status by the use of the prerogative.
The position on who makes the decision on the renegotiation terms is also straightforward: it is a treaty matter and the negotiation of and acceptance of treaties are a prerogative power. End of story. Parliament does not have to come into it, although either House could pass motions asking the government to take note of whatever those wanting the new relationship with the EU to be less than Brexit .

interesting article. With yesterday’s reporting of the high court case on this there has been mention that it is possible after the supreme court that this question could go to the EU court of justice. Under what basis would this be as surely this is an entirely sovereign question?

Art 50 TEU is within the CJEU’s competence alone to interpret as it is part of the Treaty of Lisbon. The SC will almost certainly be invited to address Donald Tusk’s pointed comments the it is revocable. This despite both parties at the HC asserting it is not and the HC proceeding on that ‘interpretation’ when arguably they should have clarified it by use of Art 267 TFEUhttp://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV:l14552
The SC may have to make what is known as a “Mandatory Referral” under the Preliminary Reference Procedure laid down in Art267TFEU as they are the national court of last resort there being no further appeal beyond them.
There is comment on this blog site re this matter
R. Lang, ‘The Article 50 Litigation and the Court of Justice: Why the Supreme Court Must Refer’, U.K. Const. L. Blog (8th Nov 2016) (available at https://ukconstitutionallaw.org/))